The real cost of cut-price justice

Special investigation: Crown prosecutors are cutting costs by adopting American-style plea bargains, allowing criminals to plead guilty to less serious charges. It saves the taxpayer the cost of length trials and jail sentences — but, asks Amy Maas, at what risk to the public?

"I knew I was skating on thin ice," he says. He didn't know what his sentence would be — but he did know he was going to get off more lightly than the seven years in prison he initially faced.

Six months earlier on November 19, a man had nicked Tia's girlfriend's wallet. Tia retaliated by beating the man so severely in an Auckland takeaway shop that he left his victim lying unconscious in his own blood.

Tia fled. When he turned himself in to police he was charged with wounding with intent to injure. If he had been found guilty he could have spent up to seven years in prison.

Tia has form: as a young member of the local Crips gang in 2007, he had been convicted of aggravated robbery and grievous bodily harm.

"The police got [the victim's] story before mine and what they found on the system about me gave them this perception of me as a monster in the community," Tia complains.

He tells the Herald on Sunday that he was prepared to defend himself. But just six days after the attack, a Crown prosecutor from Auckland law firm Meredith Connell offered to downgrade his charge to avoid a trial. Tia took the easy way out and pleaded guilty to the lesser charge.

The new charge was amended to injuring with intent, which carries a maximum penalty of five years in jail.

In Auckland District Court on Wednesday, Tia was sentenced to 10 months' home detention.

"I wouldn't have been surprised if I did [go to jail] considering my history. I was skating on thin ice; however, the judge saw my genuine effort to change," he says.

"It is still an everyday battle, but I guess I'm still tipping the balance in my favour."

The scales of justice will continue to tip in the favour of criminals with budget cuts and changes to the Criminal Procedure Act allowing profit-driven law firms like Meredith Connell to bypass the courts and negotiate quick and easy American-style plea bargains.

This can give criminals the option of pleading guilty to less serious charges so the Crown can avoid the cost of going to trial.

The change saves taxpayers court costs, and can save criminals like Tia jail time. That suits Tia, who sees himself as an aggrieved party trying to put his violent past behind him — but victims of crime and the wider public may be less sympathetic.

Labour justice spokesman Andrew Little calls it cut-price justice. "The reality of justice is that it does cost, that's the cost of law and order in society. We have rules, we have laws, they have to be enforced and they have a cost to that."

"I don't think it's good for offenders who have to face up to the reality of their offending or for society who want to know people who commit offences are being properly held to account."

I was skating on thin ice; however, the judge saw my genuine effort to change.

Matthew Tia

The new plea bargains stem, in part, from flaws in the old system.

In 2011, a review into public prosecution services found police laid unnecessarily serious charges, in the hope of scaring the accused into pleading guilty to a lesser charge at the start of the trial.

So, in the past year, there have been two critical changes to the justice system. The first was the implementation of the Criminal Procedure Act, which for the first time allows defence lawyers and Crown prosecutors to liaise directly to find mutually beneficial ways of avoiding expensive trials.

Before the new Act, cases were frequently resolved on day one of a trial with offenders agreeing to plead guilty to lesser charges to avoid a trial, because Crown prosecutors were not allowed to approach defence lawyers with deals before the trial.

Now, the deal can be done before the accused even sets foot before a judge.

Meredith Connell, which holds the Crown Solicitor's warrant for prosecutions in Auckland, has established an early resolution group whose sole purpose is to evaluate cases and siphon out those that can be resolved before trial.

Simultaneously, there have been major changes to funding of Crown prosecutions.

In the past, Meredith Connell and the other 14 warranted Crown Solicitors across the country were able to invoice the Crown Law Office on a case-by-case basis.

Year after year, they blew the baseline budget of $33 million. Firms would bill the office up to $43m and additional funding would be given based on the number of hours prosecutors worked and the cost of trials.

The Crown Law Office introduced a bulk funding model last year, meaning the $33m baseline budget is the only money available. Crown Solicitors are paid only once cases have been resolved.

Matthew Tia is grateful to be serving his sentence at home. Photo / Michael Craig

The funding changes have forced Meredith Connell and the other prosecution firms to find ways to trim their costs.

A former Meredith Connell prosecutor, speaking to the Herald on Sunday on the condition of anonymity, says there is pressure from the firm's management board to resolve cases before they go to trial because they are costly.

"Meredith Connell wants to run the warrant as cheaply as possible so they're more interested in employing junior staff," the former employee says. "It's not something that should be looked at as a profiteering business."

It causes friction between the firm's criminal and non-criminal prosecution units, the lawyer says. Prosecutors who appear for the Commerce Commission or Financial Market Authority are paid the top government rate of $320 an hour, compared to what used to be $198 for criminal sessions.

But Steve Haszard, managing partner at the firm, denies more value is placed on non-criminal prosecutions.

"We spend more time per prosecution file now than we did before," he says. "There is very little profitability in [criminal prosecutions] these days, but that's not what it's about for us. We just have a deep commitment to prosecution services in Auckland and that hasn't diminished through funding cuts."

Haszard says Meredith Connell records show the firm resolved fewer cases this year than last year because of less work.

Haszard says the firm's projected disposal rate is down 33 per cent for the year, according to Ministry of Justice figures. Yet the total number of trial hours is down 3.9 per cent. Over the first three months of this year, the hours spent on cases compared to the same three month period last year was up 14 per cent.

He would not state the actual number of hours spent on each prosecution file, saying that information was commercially sensitive.

It is simply way too early for us to judge whether the laudable justice sector goal of disposing of cases earlier in the prosecution life cycle is being met, he says.

Haszard also defends the firm's early resolution group, saying there is a robust peer review process for all resolutions to prevent human error, ensure consistency and to provide quality control against the Solicitor-General's guidelines.

The formation of a specialist group, staffed with our most senior prosecutors, is the most effective and efficient way for us to deal with the significant volume of cases we handle, he says.

The former Meredith Connell prosecutor told the Herald on Sunday that at least 37 solicitors have left the firm, either as a result of restructuring or unrest, and the firm is employing more junior staff in an effort to cut down on costs.

This affects the outcomes of prosecutions: "They're struggling at the moment because they've lost so many prosecutors. There are junior prosecutors who are appearing in court who are shaking with nerves and that loss of senior staff means that there is no training and mentoring of younger staff.

"That whole layer of expertise is gone."

Haszard said the 37 staff had left for a variety of reasons, including moving overseas and not returning from maternity leave. He said that was a 10 per cent turnover rate, low by industry standards.

He did confirm 11 former support staff have enlisted high profile employment lawyer Mark Ryan to represent them in an Employment Relations Authority dispute.

After the Herald on Sunday approached Haszard about the dispute, Meredith Connell went to court and demanded a judge suppress details of the case. Suppression was granted.

There is little profitability in [criminal prosecutions] these days, but that's not what it's about for us. We just have a deep commitment to prosecution services in Auckland and that hasn't diminished through funding cuts.

Steve Haszard, managing partner at prosecution firm Meredith Connell

The new plea bargains have prompted concern, and two such deals have been escalated to the Crown Law Office for investigation.

But Charlotte Brooke, from the Crown Law prosecution unit, says there is no evidence to suggest that resolving cases early is a bad thing. In the two cases where concerns were raised about early resolutions, she says, no fault was found in the prosecutors' handling of the plea bargains.

"There are very good reasons for these things happening that can't be publicly known," she says. "It may be that a complainant doesn't want to give evidence and the Crown would take the position of any conviction is better than no conviction."

The 2011 review of prosecutions recommended police and other enforcement agencies, like the Ministry of Justice, keep a record of the rates at which charges are amended and the reasons.

And since July last year, the ministry has started recording in its case management system whether charges have been changed. But the ministry does not record the specific reasons for those changes to charges, and has not measured the success of the new regime.

Labour's Andrew Little believes it only serves to mask the real crime rate and encourage a vicious spiral of repeat offending. If serious criminals are let off the hook by pleading guilty to less serious charges, he says, they are likely to reoffend.

And the next time they stand in the dock, a judge will not be aware of their complete criminal history and they will be viewed as low-risk. Once bailed, they will keep reoffending.

"It's all driven by the government's desire to give the appearance of crime reducing and also saving money," says Little.

This is exacerbated by budget cuts across the Ministry of Justice and police that affect crime statistics, because police no longer haul people in front of judges for less serious crimes like having a bit of cannabis in their pockets. They are given warnings instead.

"The concern for the criminal bar and for the public is that two or three years ago when the criminal justice system was properly resourced, people were being forced to confront serious charges and the Crown were pretty resolute in prosecuting those charges," Bouchier says. "What we've got now is different."

So who, then will defend the Crown prosecutors?

Perhaps unsurprisingly, there is still high praise from the Government that has set in place the new cut-price regime.

Simon Moore QC held the Crown Solicitor's warrant at Meredith Connell until the Government elevated him to the bench of the High Court. At his swearing in last month, Attorney-General Chris Finlayson praised the prosecution service as "an outstanding example of public-private partnership".

Now that Justice Moore has joined the bench, the warrant he held in Auckland is up for review.

The Crown Law Office will decide by August whether Christine Gordon QC, a senior partner at the firm, will keep the warrant or whether it will be split in two and be put up for tender.

That means Meredith Connell may be able to retain the warrant in Central Auckland, but that a South Auckland Crown warrant servicing Manukau District Court - the country's largest - could be handled by someone else. Another option is to scrap the warrant completely, and instead rely entirely on the Public Prosecution Service.

Former Meredith Connell prosecutors believe scrapping the warrant may resolve the battle between justice and profits.

Dealing to criminals, says one, should not be seen as a profiteering business.

While that battle continues to rage, Matthew Tia will continue to serve out his home detention in the basement of his family home.

"I'm grateful I'm in my home," he says. "Serving time in your home is much better than serving time in a cell. At this moment, I guess I have to play the patience card."

The man he bashed is continuing to deal with the trauma from the attack. He was hospitalised for three days and treated for lacerations to the top of his head. His jaw was fractured and he needed surgery to wire it together.

The plea bargain means Tia is back in the community after serving just two months on remand.

And when he was released on bail, he ran into his victim in the street.

"I called out to him," Tia recalls, "and no words can express the expression on his face."